Jose Eduardo Lopez v. United States , 512 F. App'x 1001 ( 2013 )


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  •                     Case: 12-10281         Date Filed: 03/18/2013   Page: 1 of 8
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 12-10281
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:11-cv-00457-CG; 1:06-cr-00062-CG-C-1
    JOSE EDUARDO LOPEZ,
    a.k.a. Lielo,
    llllllllllllllllllllllllllllllllllllllll                                 Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    llllllllllllllllllllllllllllllllllllllll                               Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Alabama
    ________________________
    (March 18, 2013)
    Before HULL, JORDAN and ANDERSON, Circuit Judges.
    PER CURIAM:
    Case: 12-10281        Date Filed: 03/18/2013       Page: 2 of 8
    Jose Eduardo Lopez, through counsel, appeals the district court’s dismissal
    of his 28 U.S.C. § 2255 motion to vacate his sentence as untimely. Lopez
    concedes that he filed his motion more than one year after his judgment of
    conviction became final. However, he argues that he was entitled to equitable
    tolling because his attorney failed to notify him of our March 2009 decision on his
    direct appeal until August 12, 2010, and he filed within one year of receiving
    notice. He argues that he was reasonably diligent in seeking updates on his appeal
    because he tried to call his attorney monthly throughout 2009 and early 2010, and
    sent his attorney letters on July 8, 2010, and August 7, 2010. After thorough
    review of the record, we affirm.1
    We review de novo the legal issue of whether a § 2255 motion is
    time-barred. Murphy v. United States, 
    634 F.3d 1303
    , 1306 (11th Cir. 2011). We
    review a district court’s denial of equitable tolling de novo and its factual
    determinations, including findings regarding a party’s diligence, for clear error.
    Arthur v. Allen, 
    452 F.3d 1234
    , 1243 (11th Cir. 2006); Amadeo v. Zant, 
    486 U.S. 214
    , 223, 
    108 S. Ct. 1771
    , 1777 (1988) (“It is well settled . . . that a federal
    1
    Alternatively, Lopez argues that the district court erred by failing to hold an
    evidentiary hearing on his claim that counsel failed to notify him of the disposition of his appeal
    and the right to file a petition for writ of certiorari, which would entitle him to relief under
    Lacaze v. United States, 
    457 F.2d 1075
    , 1078 (5th Cir. 1972). However, we decline to consider
    this argument as it is outside the scope of the certificate of appealability (COA) and thus outside
    the scope of our review. See Murray v. United States, 
    145 F.3d 1249
    , 1250-51 (11th Cir. 1998).
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    appellate court may set aside a trial court’s findings of fact only if they are ‘clearly
    erroneous.’”).
    The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
    imposes a one-year statute of limitations for filing a § 2255 motion, which begins
    to run following the latest of four possible events, including “the date on which
    the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). A conviction
    ordinarily becomes final when the Supreme Court denies certiorari or when the
    90-day period for filing a petition for certiorari expires. Close v. United States,
    
    336 F.3d 1283
    , 1284-85 (11th Cir. 2003). If a petition for rehearing is timely
    filed, the 90-day filing period runs from the date of the denial of rehearing. Sup.
    Ct. R. 13.3.
    Nevertheless, the statute of limitations may be equitably tolled where a
    movant shows “(1) that he has been pursuing his rights diligently, and (2) that
    some extraordinary circumstance stood in his way and prevented timely filing.”
    Holland v. Florida, 
    560 U.S.
    __, __, 
    130 S. Ct. 2549
    , 2562 (2010) (quotation
    omitted). As to the first prong, the movant need only demonstrate “reasonable
    diligence” rather than “maximum feasible diligence.” Id. at __, 130 S. Ct. at 2565
    (quotations omitted). As to the second prong, an extraordinary circumstance is
    one that is both beyond the movant’s control and unavoidable even with diligence.
    3
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    Drew v. Dep’t of Corrs., 
    297 F.3d 1278
    , 1286 (11th Cir. 2002); see United States
    v. Montano, 
    398 F.3d 1276
    , 1280 n.5 (11th Cir. 2005) (holding that a movant’s
    limited ability to communicate in English was not extraordinary for purposes of
    equitable tolling). Equitable tolling “is an extraordinary remedy which is typically
    applied sparingly,” and the movant bears the burden of showing that it is
    warranted. Drew, 297 F.3d at 1286 (quotation omitted). When a movant has “not
    carried his burden of showing that he pursued his rights diligently,” the court
    “need not decide whether [he] has established that an extraordinary circumstance
    stood in the way” of timely filing. Hutchinson v. Florida, 
    677 F.3d 1097
    , 1103
    (11th Cir.), cert. denied, 
    133 S. Ct. 435
     (2012).
    A court’s equitable powers must be exercised on a case-by-case basis.
    Holland, 
    560 U.S.
    at __, 130 S. Ct. at 2563. In Holland, the Supreme Court held
    that attorney misconduct that goes beyond “garden variety” negligence and is
    sufficiently egregious may constitute an extraordinary circumstance. Id. at __, 130
    S. Ct. at 2563-64. Despite Holland’s many pleas, his attorney failed to file a
    timely federal habeas petition, failed to timely inform him that the state supreme
    court had decided his case, and failed to communicate with him over a period of
    years. Id. at __, 130 S. Ct at 2564. The Court noted that “Holland not only wrote
    his attorney numerous letters seeking crucial information and providing direction,”
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    but also “repeatedly contacted the state courts, their clerks, and the Florida State
    Bar Association in an effort to have [his attorney] . . . removed from his case.” Id.
    at __, 130 S. Ct at 2565. Holland also promptly filed a pro se federal habeas
    petition the very day that he discovered the statute of limitations had expired due
    to counsel’s failings. Id.
    “A lengthy delay between the issuance of a necessary order and an inmate’s
    receipt of it might provide a basis for equitable tolling if the petitioner has
    diligently attempted to ascertain the status of that order and if the delay prevented”
    timely filing of a § 2255 motion. Drew, 297 F.3d at 1288. However, “not in every
    case will a prisoner be entitled to equitable tolling until he receives notice.”
    Knight v. Schofield, 
    292 F.3d 709
    , 711 (11th Cir. 2002). Although no bright-line
    rule requires prisoners to directly contact the court system, we have held that
    “efforts to learn the disposition of pre-federal habeas steps are crucial to
    determining whether equitable tolling is appropriate.” San Martin v. McNeil, 
    633 F.3d 1257
    , 1269 (11th Cir.), cert. denied, 
    132 S. Ct. 158
     (2011).
    Applying these principles, we held that due diligence was not established in
    Drew or San Martin. In Drew, the petitioner could not substantiate his claim that
    he repeatedly tried to learn the status of his case when he could only prove that he
    sent one letter to the clerk’s office and provided no additional information about
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    the letters. 297 F.3d at 1288-89. Furthermore, the petitioner made no other
    attempts to contact the court, such as calling or “seeking help from people with the
    ability to go to the court personally.” Id. at 1289. This Court, in holding that the
    petitioner was not entitled to the “rare and extraordinary remedy of equitable
    tolling,” also stressed that we must accord “necessary deference to the district
    court’s findings of fact” and not engage in a de novo review of these findings. Id.
    at 1289-90. The petitioner in San Martin, among other things, made no attempt to
    contact the court to learn about the resolution of his case or anyone else to
    complain about his unresponsive attorney, if that had actually been the case. 633
    F.3d at 1270.
    On the other hand, equitable tolling was appropriate where a prisoner was
    assured by the court that it would notify him as soon as a decision was made, and
    he contacted the court to inquire about his case after notice was inadvertently sent
    to the wrong person. Knight, 292 F.3d at 710-11. Additionally, the petitioner in
    Aron was entitled to an evidentiary hearing when, in addition to writing many
    letters and placing numerous calls to his attorney, he attempted to file two pro se
    motions with the district court, as well as a letter inquiring about the status of a
    motion, all before the statute of limitations had run. Aron v. United States, 
    291 F.3d 708
    , 713-14 (11th Cir. 2002).
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    The district court did not clearly err in finding that Lopez was not
    reasonably diligent in his efforts to ascertain the disposition of his direct appeal.
    Like the petitioner in Drew, Lopez’s alleged attempts to contact his attorney by
    phone and mail are largely unsupported by the record evidence. Instead, the
    earliest specific date that he wrote to his attorney was July 8, 2010, nearly eleven
    months into the one-year statute of limitations. Additionally, similar to the
    petitioner in San Martin, Lopez made no attempt to contact either the district
    court, nor this Court, regarding the status of his appeal during 2009 and most of
    2010 despite having previously inquired about the status of his appeal in 2007 and
    having previously filed a pro se “motion for appeal” that same year. Lopez also
    filed a November 2010 “motion requesting legal documents” with the district
    court. This demonstrated correspondence with the district court indicates that he
    was aware that he could contact the court system, yet he offers no explanation for
    his failure to do so during the relevant time period. Nor has Lopez alleged that he
    sought help from anyone else or consulted with anyone regarding his attorney’s
    alleged non-responsiveness. See Drew, 297 F.3d at 1289. Finally, Lopez received
    a copy of the decision on his direct appeal from his attorney on August 12, 2010,
    six days prior to the expiration of the statute of limitations on August 18, 2010.
    But Lopez offers no explanation for waiting almost one year before filing his §
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    2255 motion on August 4, 2011.
    Because Lopez has not demonstrated that the district court was clearly
    erroneous in finding that Lopez failed to exercise reasonable diligence, we need
    not decide whether Lopez has established that his attorney’s inaction was
    sufficiently egregious to qualify as an extraordinary circumstance. See
    Hutchinson, 677 F.3d at 1103. Lopez has not met his burden of showing that
    equitable tolling was warranted.
    Upon review of the entire record on appeal, and after consideration of the
    parties’ appellate briefs, we affirm.
    AFFIRMED.
    8